Restricted Exceptions to the Hearsay Rule

Question 1

Rationale for FRE 804 Exceptions

Answer 1

• To the extent that the hearsay rule reflects a desire to keep unreliable information away from the jury, the statements giving rise to FRE 804 exceptions are less reliable that the statements giving rise to the FRE 803 exceptions.
• While the statements covered by the FRE 804 exceptions are formally more reliable, they are evaluatively less reliable. That is, there is a heightened danger that the jury may overvalue these statement
• We prefer some evidence to no evidence

Question 2

FRE 804(a)(1) Criteria for Being Unavailable

Answer 2

A declarant is considered to be unavailable as a witness if the declarant is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies.

Question 3

FRE 804(a)(2) Criteria for Being Unavailable

Answer 3

A declarant is considered to be unavailable as a witness if the declarant refused to testify about the subject matter despite a court order to do so.

Question 4

FRE 804(a)(3) Criteria for Being Unavailable

Answer 4

A declarant is considered to be unavailable as a witness if the declarant testifies to not remembering the subject matter

Question 5

FRE 804(a)(4) Criteria for Being Unavailable

Answer 5

A declarant is considered to be unavailable as a witness if the declarant cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness or mental illness

Question 6

FRE 804(a)(5) Criteria for Being Unavailable

Answer 6

A declarant is considered to be unavailable as a witness if the declarant is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure

1. The declarant’s attendance in the case of a hearsay exception under Rule 804(b)(1) or (6) or
2. The declarant’s attendance or testimony in the case of a hearsay exception under Rule 804(b)(2), (3) or (4)

Question 7

FRE 804(a) Final Paragraph Criteria for Being Unavailable

Answer 7

But this subsection (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying

Question 8

Determining Unavailability

Answer 8

The judge determines whether a declarant is unavailable under FRE 104(a)

Question 9

Asserting a Privilege

Answer 9

When a witness asserts are privilege, the judge must make a judicial determination to decide whether the witness meets the elements needed to assert the privilege

Question 10

Overriding the Fifth Amendment Privilege

Answer 10

This is the only privilege the government can override. There are two types: transactional immunity and use and derivative use immunity

Question 11

The Court’s Requirement for FRE 804(a)(2)

Answer 11

The court is required to use its bests efforts to persuade the witness to testified. FRE 804(a)(2) is only applicable if the declarant appears in court, has been ordered by the court to testify (usually under threat of contempt), and refuses to testify. This includes when the judge believes the declarant is feigning memory loss

Question 12

United States v. Owens

1988

Answer 12

Declarants can have sufficient memory loss to be unavailable under FRE 804(a)(3) and still be subject to cross-examination under 803(d)(1). It is irrelevant whether the declarant remembers making the hearsay statement. What matters is a lack of memory of the underlying events.

Question 13

Comparison of Memory Loss for FRE 803(5) and 804

Answer 13

• For FRE 804(5), while the witness needs to have sufficient memory loss not to be able to testify fully and accurately, the witness must have enough memory of an event to be able to vouch that recorded recollections accurately reflect thee witness’s knowledge at the time the recording was made
• For FRE 804, the person needs to have no memory.

Question 14

FRE 804(b)(1) The Exceptions

Former Testimony

Answer 14

The following is not excluded by the rule against hearsay if the declarant is unavailable as a witness. Testimony that

1. Was given as a witness at a trial, hearing or lawful deposition, whether given at the current proceeding or a different one and
2. Is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity or similar motive to develop it by direct, cross, or redirect examination

Question 15

FRE 804(a)(5)’s Deposition Requirement

Answer 15

The requirement to try to take a deposition does not apply to former testimony or forfeiture

Question 16

Defendants’ Rights at Preliminary Hearings/Grand Jury Trials

Answer 16

While defendants have an opportunity to cross-examine at preliminary hearings, they do not at grand jury proceedings. But a defendant’s grand jury testimony can be admitted against the defendant under FRE 801(d)(1)(A)

Question 17

Hearsay Issues with Transcripts

Answer 17

The use of a transcript can present a hearsay within hearsay problem. The text asserts that the witness orally asserted he witnessed something. This can be solved by admitting the evidence under FRE 803(5) or FRE 803(8).

Question 18

FRE 804(b)(2) The Exceptions

Statements Under the Belief of Imminent Death

Answer 18

The following is not excluded by the rule against hearsay if the declarant is unavailable as a witness. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances

Question 19

Shepard v. United States

1933

SCOTUS’s Ruling

Answer 19

The defendant was charged with murdering his wife. The wife’s statement, “Dr. Shepard poisoned me” was inadmissible as a dying declaration because her death was not imminent. There was actually hope for recovery. (104(a))

• The declarant must have spoken without hope of recovery and in the shadow of impending death
• The exception cannot be used to introduce mere conjecture. The declarant must know (or have an opportunity to know) the facts declared
• The judge can consider the circumstances in which the statement is made in determining whether the declarant had personal knowledge. (104(b))

Question 20

FRE 804(b)(2) v. Common Law

Answer 20

The FRE dying declaration exception is broader than the common law version.

• The common law only allowed these statements in homicide cases
• The common law limited the exception to cases where the declarant was unavailable because she was dead
• The common law only applied the exception in cases about the declarant’s own death

Question 21

FRE 804(b)(3) The Exceptions

Statements Against Interest

Answer 21

The following is not excluded by the rule against hearsay if the declarant is unavailable as a witness. A statement that

1. A reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone or to expose the declarant to civil or criminal liability and
2. Is supported by corroborating circumstances that clearly indicate its trustworthiness, if offered in a criminal case as one that tends to expose the declarant to criminal liability

Question 22

Five Types of Statements Against Interest

Answer 22

• Ones that were so contrary to the declarant’s proprietary interest
• Ones that were so contrary to the declarant’s pecuniary interest
• Ones that had so great a tendency to invalidate the declarant’s claim against someone
• Ones that had so great a tendency to expose the declarant to civil liability
• Ones that had so great a tendency to expose the declarant to criminal liability

Question 23

FRE 804(b)(3)

Subjective or Objective

Answer 23

The test under FRE 804(b)(3) is an objective one – the question is whether a typical person would be aware of the statement’s against-interest nature. But in conducting this objective analysis, the declarant’s subjective perspective is relevant because the test asks what a reasonable person in the declarant’s position would have believed

Question 24

FRE 804(b)(3)

Not Against Interest

Answer 24

• A statement assuming responsibility for a criminal act is not against a declarant’s penal interest if he can’t be prosecuted for it
• A statement may not be against the declarant’s interest if the declarant is terminally ill

Question 25

FRE 804(b)(3)

Trustworthiness

Answer 25

Unlike the public records and business exceptions, where the opposing party has the burden of challenging trustworthiness, the proponent must establish trustworthiness

Question 26

Rationale for FRE 804(b)(3)

Answer 26

We are afraid that someone who did not commit a crime will admit they did to protect the one that did

Question 27

FRE 804(b)(3)

Social Interest

Answer 27

Although statements against social interests do not fall within the scope of FRE 804(b)(3), if disclosure of the fact contained in the statement might cause the defendant to lose her job or lose business, it may be against the defendant’s pecuniary or proprietary interest

Question 28

Williamson v. United States

1984

Facts

Answer 28

The defendant’s accomplice, Harris, was captured and told the police about their scheme to transport cocaine to Atlanta. Although he implicated himself, Harris would not let the police record his story and would not sign a statement about it. He also refused to testify at trial. The district court allowed the DEA agent who interviewed Harris to testify about what Harris told him.

Question 29

Williamson v. United States

1984

Procedural History

Answer 29

The district court convicted the defendant of possessing cocaine with intent to distribute, conspiring to possess cocaine with intent to distribute and traveling interstate to promote the distribution of cocaine. The defendant appealed saying Harris’s statement violated FRE 804(b)(3) and the Confrontation Clause. The Eleventh Circuit affirmed.

Question 30

Williamson v. United States

1984

SCOTUS Ruling

Answer 30

SCOTUS said that when a court decides whether to use FRE 804(b)(3), it must evaluate whether the statement was “sufficiently against the declarant’s penal interest…in light of all the circumstances.” Since nothing in the record showed the district court or the Circuit Court did this, SCOTUS remanded it to back to the Circuit Court.

Question 31

Williamson v. United States

1984

Self-Inculpatory Statements v. Collateral Statements

Answer 31

• A narrative declaration may consist of several statements. Only the self-inculpatory ones are admissible. Collateral statements, even ones that are neutral as to interest, do not meet the criteria for FRE 804(b)(3) even if they are made as part of the same broad narrative
• Whether a statement is self-inculpatory can only be determined by viewing it in context. Statements that appear to be neutral may actually be against the declarant’s interests
• Confessions of arrested accomplices may be admissible if they are truly self-inculpatory, rather than merely attempts to shift the blame or curry favor

Question 32

Self-Inculpatory Statements in Context

Answer 32

Making a reference to a third person’s involvement in a crime may be an effort to shift blame when made in a custodial setting. On the other hand, it is more likely to be viewed as self-inculpatory when made in a non-custodial setting, such as to friends or acquaintances

Question 33

Factors to Determine Trustworthiness for FRE 804(b)(3)

Answer 33

• Whether the defendant has pled guilty or was still exposed to prosecution for making the statement
• The declarant’s motive in making the statement and whether there was a reason for him to lie
• Whether the declarant repeated the statement and did so consistently
• The party to whom the statement was made
• The relationship of the declarant and the accused
• The nature and strength of independent evidence relevant to the conduct in question

Question 34

Comparison of Declarant-Witness’s Prior Statements and Statements Against Interest

The Declarant

Answer 34

FRE 803(d)(1) – the declarant must be a party

FRE 804(b)(3) – the declarant can be a non-party

Question 35

Comparison of Declarant-Witness’s Prior Statements and Statements Against Interest

Availability

Answer 35

FRE 801(d)(1) – unavailability is not needed

FRE 804(b)(3) – unavailability is required

Question 36

Comparison of Declarant-Witness’s Prior Statements and Statements Against Interest

The Statement

Answer 36

FRE 801(d)(1) – the statement doesn’t have to be against interest

FRE 804(b)(3) – the statement must be against interest

Question 37

Comparison of Declarant-Witness’s Prior Statements and Statements Against Interest

Personal Knowledge

Answer 37

FRE 801(d)(1) – the declarant does not have to have personal knowledge

FRE 804(2)(3) – the declarant must have personal knowledge

Question 38

FRE 804(b)(4) The Exceptions

Statements of Personal or Family History

Answer 38

The following is not excluded by the rule against hearsay if the declarant is unavailable as a witness. A statement about

1. The declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage or similar facts of personal or family history even though the declarant had no way of acquiring personal knowledge about that fact or
2. Another person concerning these facts, as well as death, if the declarant was related to the person by blood, adoption or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate

Question 39

FRE 804(b)(6) The Exceptions

Statements Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability

Answer 39

The following is not excluded by the rule against hearsay if the declarant is unavailable as a witness. A statement offered against a party that wrongfully caused – or acquiesced in wrongfully causing – the declarant’s unavailability as a witness and did so intending that result

Question 40

Application of the Forfeiture Exception

Answer 40

The forfeiture exception not only applies if the defendant kills the declarant, but it also applies in many other situations in which less violent forms of silencing the declarant are involved, such as coercion, undue influence or pressure

Question 41

Determining Whether FRE 804(b)(6) Applies

Answer 41

The judge decides whether the criteria for FRE 804(b)(6) are met using FRE 104(a). However, some states disagree with thus approach. For example, in New York the prosecutor must establish clear and convincing evidence that the defendant caused the declarant’s unavailability

Question 42

FRE 804(b)(6)

Forfeiture of Cross-Examination

Answer 42

If applicable, the forfeiture exception overrides the opponent’s right of cross-examination. That is, the hearsay may be used even though the opponent had no opportunity to examine the declarant. For example, a declarant’s grand jury testimony can be admitted against the defendant who subsequently caused the declarant’s unavailable even though the defendant did not have an opportunity to cross-examine the declarant in the grand jury proceeding

Question 43

FRE 804(b)(6) and the Confrontation Clause

Answer 43

This exception has been around since the founding era so it doesn’t clash with the Confrontation Clause

Question 44

FRE 804(b)(6) and Conspiracy

Answer 44

The forfeiture exception applies even where the declaration was made by the defendant’s co-conspirator.

Question 45

Pinkerton

Answer 45

For a co-conspirator’s actions to be imputed to the defendant, the wrongful act that made the declarant unavailable must have been

• In furtherance of the conspiracy
• Within the scope of an on-going conspiracy and
• Reasonably foreseeable as a natural or necessary consequence of the conspiracy

Question 46

FRE 804(b)(6) and Use of Unavailable Declarant’s Statements

Answer 46

Statements of the unavailable declarant can not only be used in the trial in which the declarant would have testified, but can also be used in a subsequent prosecution for making the declarant unavailable

Question 47

FRE 807(a) Residual Exception

In General

Answer 47

Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception under Rule 803 or 804

1. The statement is supported by sufficient guarantees of trustworthiness – after considering the totality of the circumstances under which it was made and evidence, if any, corroborating the statement and
2. It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable effort

Question 48

FRE 807(b) Residual Exception

Notice

Answer 48

The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement – including its substance and the declarant’s name – so that the party has fair opportunity to meet it. The notice must be provided in writing before the trial or hearing – or in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

Question 49

FRE 807 Procedural Issues

Answer 49

• The court must go through the entire 3-step hearsay analysis before it can use FRE 807
• The proponent has the burden of proving FRE 807(a)(1)

Question 50

Close-Enough Approach to FRE 807

Laster Majority

Answer 50

Hearsay is admissible under FRE 807 even when it just misses a requirement of FRE 803 or FRE 804. This theory is based on

• Pragmatism – it promotes a greater faithfulness to the hearsay rule, exclusions and exceptions
• Historical development of the FRE – it lets more information get to the jury

Question 51

Near-Miss Approach to FRE 807

Laster Minority

Answer 51

If a statement is admissible under FRE 803 or FRE 804, that exception should be used to admit it. Courts can admit evidence not specifically covered in those rules under 807 as long as there are guarantees of trustworthiness. This view is based on

• The text of FRE 807
• The legislative history of 807
• The purpose of the FRE (FRE 102 – consistency)
• The structure of the FRE (Step 2)